Horner v Hunt
[2013] WASC 241
•21 JUNE 2013
HORNER -v- HUNT [2013] WASC 241
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 241 | |
| 21/06/2013 | |||
| Case No: | SJA:1065/2013 | 11 JUNE 2013 | |
| Coram: | HALL J | 11/06/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal granted Leave to appeal granted on ground 1 Appeal allowed Sentence set aside and appellant re-sentenced | ||
| B | |||
| PDF Version |
| Parties: | PETA CHANTEL HORNER TIMOTHY WILLIAM HUNT |
Catchwords: | Criminal law Appeal against sentence Whether a sentence of 8 months' imprisonment for trespass was manifestly excessive Whether the sentence should have been suspended |
Legislation: | Nil |
Case References: | Chan (1989) 38 A Crim R 337 McLeod v The State of Western Australia [2009] WASCA 233 Ness v The State of Western Australia [No 2] [2013] WASCA 56 Pickett v The State of Western Australia [2004] WASCA 291 Powell v The State of Western Australia [2010] WASC 54 Wilson v The State of Western Australia [2010] WASCA 82 Wright v McMurchy [2012] WASCA 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TIMOTHY WILLIAM HUNT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K T FISHER
File No : BU 5529 of 2012
Catchwords:
Criminal law - Appeal against sentence - Whether a sentence of 8 months' imprisonment for trespass was manifestly excessive - Whether the sentence should have been suspended
(Page 2)
Legislation:
Nil
Result:
Extension of time to appeal granted
Leave to appeal granted on ground 1
Appeal allowed
Sentence set aside and appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant : Mr D D Brunello
Respondent : Mr D E Leigh
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
McLeod v The State of Western Australia [2009] WASCA 233
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Pickett v The State of Western Australia [2004] WASCA 291
Powell v The State of Western Australia [2010] WASC 54
Wilson v The State of Western Australia [2010] WASCA 82
Wright v McMurchy [2012] WASCA 257
(Page 3)
- HALL J:
Introduction
1 This appeal against sentence was heard by me on 11 June 2013. Following the hearing I granted the extension of time sought, granted leave to appeal and allowed the appeal. These are my reasons for making those orders.
2 Between March and December 2012 the appellant committed a series of offences of petty theft. That is to say, she stole small amounts of property from shops or open cars. Her motivation was to obtain money to fund her drug habit.
3 On 25 January 2013 the appellant appeared in the Bunbury Magistrates Court to be sentenced on a number of charges. She was also liable to be resentenced for earlier offences because she had breached a community based order by failing to attend to undertake community work when required. The magistrate who dealt with the appellant expressed a degree of frustration at the ineffectiveness of previous penalties to deter the appellant from reoffending.
4 The many stealing offences for which the appellant was to be sentenced related to property worth less than $1,000 and thus the summary penalty did not allow for imprisonment: s 426(4) of the Criminal Code (WA). However, amongst the offences was one of trespass committed on 26 September 2012 and one of possession of stolen property committed on 6 July 2012. For these offences the magistrate imposed sentences of 8 months and 4 months' imprisonment respectively. Those sentences were made cumulative on each other producing a total effective sentence of 12 months' imprisonment. Some other short sentences of imprisonment were also imposed for other offences but they were made wholly concurrent.
5 At the time of her sentencing the appellant had been in custody for 3 months on the charges. The total sentence of 12 months was not backdated. The magistrate stated that he had already taken the time in custody into account in determining the length of the sentences he imposed. He said that if not for that time a total sentence of 18 months' imprisonment would have been appropriate.
6 The appeal focused on the sentence of 8 months' imprisonment for the trespass offence. In essence, the contention was that the sentence was manifestly excessive.
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7 The respondent conceded that the sentence was excessive. I was satisfied that the concession was properly made. Accordingly, the appeal was allowed, the sentence of 8 months' imprisonment was set aside and the appellant was resentenced on that charge.
Grounds of appeal
8 The grounds of appeal are as follows:
1. The sentence of 8 months immediate imprisonment imposed for trespass (BU5529/12) was manifestly excessive, in all the circumstances, in particular having regard to:
(i) The maximum penalty for the offence
(ii) The factual circumstances of the offence and the place it occupied on the scale of seriousness for offences of the kind
(iii) The appellant's co-operation with police
(iv) The appellant's plea of guilty
(v) The period of pre-sentence custody
(vi) The appellant's personal circumstances.
2. The Magistrate erred in failing to consider and impose a suspended imprisonment order, in circumstances where a suspended imprisonment order was within a proper exercise of discretion.
Extension of time
9 The appeal notice was not filed until 27 May 2013, that is three months out of time. Accordingly, an extension of time was required.
10 The appellant was represented in the proceedings before the magistrate on 25 January 2013. On 26 February 2013 the lawyer who had appeared before the magistrate sought an opinion from another lawyer regarding possible grounds and the prospects of success of an appeal against sentence. On 28 February 2013 a copy of the transcript was requested. The transcript was not received until 20 May 2013. On 21 May 2013 the appellant instructed her solicitor that she wished to proceed with an appeal. On 24 May 2013 the appellant's lawyer formed the view that there were meritorious grounds of appeal against sentence. That explanation is said to account for the delay.
11 The explanation does not justify the delay. A month passed after sentence without any action being taken. Further delay occurred whilst
(Page 5)
- awaiting transcript, but given that the appellant had been represented in the Magistrates Court it should not have been necessary to await a transcript before filing an appeal notice.
12 However, an extension can also be granted if it is established that a miscarriage of justice will occur if an extension is not granted: McLeod v The State of Western Australia [2009] WASCA 233 [79] (McLure P). This may require more to be demonstrated than merely that an appeal ground would be successful should time be extended. A relevant consideration in granting leave in these circumstances is the seriousness of the consequences of the sentence for the appellant and whether the State has been prejudiced by the delay in bringing the appeal: Wright v McMurchy [2012] WASCA 257 [54] (Pullin JA) (Buss and Mazza JJA agreeing).
13 In this case the respondent accepted that the imposition of a sentence of 8 months' immediate imprisonment was a serious consequence for the appellant. It was also accepted that there was no prejudice to the State arising from the delay in bringing the appeal. In these circumstances it is necessary to give consideration to the merits of the proposed grounds of appeal in order to determine whether an extension should be granted.
14 It has been accepted by the respondent that ground 1 does have merit and should succeed. Accordingly, in those circumstances, it was appropriate that an extension of time be granted.
The facts
15 On 2 August 2012 the appellant appeared in the Bunbury Magistrates Court on a number of stealing-related charges. She was placed on a 6 month community based order with a requirement to undertake 80 hours of community work. She failed to report within 72 hours as required and was issued with a warning letter on 8 August 2012 directing her to report on 13 August 2012. She again failed to report as required or to make any other contact with the Department of Corrective Services. None of the 80 hours of community work was undertaken. Breach action was subsequently commenced.
16 On 26 August 2012 at about 11.10 am the appellant was walking in a suburban street in Bunbury. She passed a car parked on the street and saw a wallet on the road by the driver's side. She picked up the wallet and placed it in her bag and walked away. The wife of the owner of the wallet saw what occurred and alerted her husband. The husband gave chase and caught up with the appellant and asked her to return the wallet. The
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- appellant dropped the wallet and the victim recovered it and its contents. The police were called and the appellant was arrested. When searched she was found to be in possession of a smoking implement which she admitted was hers.
17 On 6 September 2012 the appellant was at her home in Withers, Bunbury. A person, who was not identified, attended at the house between 1.00 am and 2.00 am and asked the appellant if she wished to go for a drive. The appellant and the other person then walked to a nearby motor vehicle. The vehicle had been stolen by the other person the previous afternoon. Before getting into the passenger seat the appellant asked the other person if the vehicle was stolen and was told that it was. The vehicle was driven around the Bunbury area for a short time before being parked behind an abandoned house. The car was recovered the same day by police.
18 Between 6.00 pm and 11.55 pm on 17 September 2012 the appellant was walking in Withers, Bunbury. She was looking at cars to see if they were unlocked. She approached a utility parked in a driveway and entered the vehicle by the unlocked passenger side door and stole a GPS valued at $100. She continued walking around the streets and located a second unlocked vehicle from which she stole a pocket personal computer with a value of $20.
19 On 26 September 2012 the appellant was in Scott Crescent in Bunbury when she approached an unlocked vehicle that was parked in the street. She found a white portable DVD player in the rear of the vehicle which she stole. Later the same day, between 12.00 pm and 1.00 pm, the appellant was walking in Carey Park, Bunbury. She observed a small bag concealed underneath a tree. She picked up the bag and found it to contain a set of keys. She placed these items into her bag and continued walking. A short time later the appellant was in East Bunbury when she saw a motor vehicle with the window down. She reached in through the open window and stole an iPod and a makeup box with a total value of $100. At 2.30 pm the same day the appellant was in front of a residence in Scott Street, East Bunbury. She was seen looking through the windows of a motor vehicle that was parked on the front lawn of the residence. The resident came out of the house and asked the appellant what she was doing. The appellant said that she was just leaving and started to walk away. She was seen by police and placed under arrest for another matter. This last incident constituted the offence of trespass for which the appellant was later sentenced to 8 months' imprisonment.
(Page 7)
20 On 23 October 2012 at 5.00 pm the appellant was walking in Katanning. She looked through the display window of a men's clothing shop and saw a black singlet valued at $50. She then entered the store, took the singlet from the rack and walked from the store without paying.
21 At 12.30 pm on 24 October 2012 the appellant was at the Target Country Store in Katanning. She went to the children's wear section of the store and selected a child's nightwear set valued at $32 which she concealed under her jumper. She then left the store without paying for the item. Her actions were caught on close circuit television. She was spoken to by police later that day and made full admissions.
22 On 22 December 2012 at 10.20 am the appellant was stopped in Withers and spoken to by police. A search of a handbag that the appellant was carrying resulted in four small clipseal bags being located. Each bag contained a small amount of white crystalline substance that the appellant admitted was methamphetamine. The total quantity was less than one gram.
23 During the period that the above offences were being committed the appellant twice breached her bail. On 15 October 2012 she was released to bail from the Katanning Magistrates Court after signing an undertaking to appear again at that court on 20 November 2012. She failed to appear and a warrant issued for her arrest. On 26 August 2012 the appellant was released on police bail after signing an undertaking to appear in the Bunbury Magistrates Court on 7 September 2012. She again failed to appear and an arrest warrant issued. In respect of those breaches of bail the prosecution applied for forfeiture of a total of $2,500.
Proceedings in the Magistrates Court
24 The solicitor who appeared for the appellant told the magistrate that the appellant had a very serious drug problem and had been stealing things to get money for drugs. The exception was the two items of clothing that were stolen in Katanning on 23 and 24 October 2012. She stole the singlet for herself and the nightwear for the child of a friend.
25 As regards the breaches of bail, it was submitted that the appellant had failed to appear in Katanning because she was in Bunbury at the time and could not leave because her son was having 'some problems'. It was accepted that she had failed to notify the court that she could not attend. As regards the other breach of bail, it was said that the appellant had 'simply forgot'.
(Page 8)
26 In relation to the trespass offence committed on 26 September 2012, it was submitted that on this day the appellant had been walking around Withers stealing items out of cars. She became aware that the police were coming and attempted to hide behind a car parked on the front lawn of a house. This was said to be the reason that she had trespassed on to the property.
27 As regards the stealing of the vehicle, the appellant admitted that she had a suspicion that the car was stolen when the other person turned up at her house.
28 As regards the possession of methamphetamines, this was said to be for personal use and to be evidence of her serious drug problem. The smoking implement was, again, to facilitate her personal use of drugs.
29 As regards the breach of the community based order, it was said that the appellant conceded that she had no excuse other than that she was using drugs and was unable to comply with the order. Her life was said to be unstable at that time. She was 34 years old with six children aged between 10 and 18. None of her children were living with her. She had been living partly in Katanning and partly in Bunbury. Katanning was a positive environment for her in that she stayed there with an elderly lady who suffers from dementia and who she cares for.
30 By the time the appellant came to be sentenced she had spent a total of approximately 3 months in custody at different periods. This had occurred because she had been arrested at different times and spent time in custody before being bailed.
Sentencing
31 In sentencing the appellant the magistrate noted that the appellant had resolved to stop using amphetamines and to set a better example for her children. He said that it was clear that the appellant's life was chaotic because of her addiction to drugs. He then said:
You have a long long history of dishonesty. I don't know when it was that your involvement with drugs commenced but your behaviour has been effectively a persistent course of behaviour of petty crime of stealing; being in possession of property; not attending courts - and on each of those occasions you have been dealt with variously by the courts with every possible disposition short of imprisonment. You've been fined and you owe currently the Crown $22,000 for fines. You've got no arrangement to pay them and no hope of paying them.
(Page 9)
- So it is perhaps a regrettable example of the impotence of the law presently to deal appropriately in a deliberate way earlier in the piece for a person who is involved in petty crimes of which the penalty is ideally available only of a fine, or as an option as the least of a fine. So it's perhaps an example where the court did the wrong thing because thereafter and throughout that period of time it also sought to offer you the assistance that you so desperately needed because of your circumstances, largely brought about by your addiction to drugs.
A time comes, I would have thought, when the court needs to recognise not only the ineffectiveness of its decisions but also your incapacity or unwillingness to take the assistance that was provided to you, and as a result of which the law and the courts are entitled to say the community needs a rest. It needs a rest from your persistence of criminal behaviour that goes on, despite the best efforts of everybody, unabated and, as I say, in a person whose life because of drugs is simply chaotic.
You will be going to gaol today and I'm not going to deal with you in such a way, I hope, that at the end of the day you lose all hope because I want you to have hope, and I want you to take this opportunity to reflect and I want you to take the opportunity to do what you can to begin the process of abstinence from drugs. I'm going to take a very unusual step that no doubt is unsupported by the law but I hope it's supported by the authorities.
In respect of each of the stealing offences it will be an abject ridiculous disposition with a person who's got $22,000 of outstanding fines to fine you. So I'm releasing you in respect of each of those offences of stealing, simpliciter, to a release without penalty under section 46 of the Sentencing Act.
In respect of the matters otherwise - and I can indicate to you that I'm not continuing the order of community based order. It's been cancelled and you're being resentenced, but in respect of the events that caused me the gravest concern was the persistence of pilfering from motorcars in Scott Street culminating in the trespass at that particular time, you are in respect of that trespass sentenced to eight months' imprisonment (ts 10 - 11).
32 The penalties imposed are reflected in the following table:
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33 The appellant also was liable to be resentenced for the earlier offences for which she had been placed on a community based order. The facts of those offences were not referred to at the time of sentencing. They were, however, offences of a similar type. They included an offence of possessing stolen property committed on 6 July 2012 for which the magistrate imposed a sentence of 4 months' imprisonment cumulative.
(Page 11)
- Whilst that sentence is not the subject of this appeal it explains how the total effective sentence was 12 months' imprisonment.
34 The magistrate also ordered that the appellant forfeit the amounts that were subject to the bail undertakings which she breached, being a total amount of $2,500. His Honour then said:
It is in respect of the trespass that occurred on Scott Street and the possess the suspect property to which you were previously released on a community based order, those offences and the sentences of imprisonment of eight and four months respectively are to be served cumulatively one with the other.
The offences otherwise in which the sentence of imprisonment's been imposed to be concurrent with all other offences. Giving you a total period of 12 months' imprisonment. As I indicated to you at the outset it is time for the community to have a rest from your persistent behaviour. It is also importantly a time for you to continue to reflect on the hope that you will take this opportunity to rid yourself of the amphetamines and because, in my respectful view, that you be released before the 12 months subject to your good behaviour under supervision that you can build at that time, with the assistance of the community corrections officer or parole officers, on that support that you require to deal with the addiction.
So I'm declaring that you are otherwise eligible for parole. It is also the case that because you have $22,000 outstanding it might be appropriate for you to call up those fines and to clear them completely by serving your time now. So too in respect of the breach of the bail matters and the forfeitures, you can call up those and deal with those by serving time now. Which means that when you are released from custody you come out with a new start, a fresh start, and you can build, I hope, on what you hope to achieve today. Stand down.
HUBER, MS: Sir, has that taken into consideration the time in custody?
HIS HONOUR: I have done, and I didn't mention it, but she spent three months in custody. Otherwise, in my respectful view, it would have been something in the order of 18 months (ts 11 - 12).
Ground 1 - Was the sentence manifestly excessive?
35 The general principles on which an appellate court operates are well known. See Wilson v The State of Western Australia [2010] WASCA 82 [2].
36 A ground of appeal that asserts that a sentence is manifestly excessive is a complaint of implied error, that is, whilst there may be no express error that can be identified, it is said that the sentence imposed
(Page 12)
- was inappropriate having regard to all the circumstances such that it can be inferred that the magistrate erred in the exercise of his discretion.
37 To determine whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standard of sentences customarily imposed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of offences of this type and the personal circumstances of the offender: See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).
38 The maximum penalty for the offence of trespass is 12 months' imprisonment and a fine in the sum of $12,000: s 70A(2) of the Criminal Code.
39 There are few decisions in respect of sentences for offences of trespass. The respondent referred to a number of decisions however they related to appeals against conviction or appeals where the sentence in respect of a trespass offence was not given any specific consideration. No customary range of sentences can be discerned.
40 As to the seriousness of the particular circumstances, the trespass offence occurred on the same day that the appellant had approached a number of parked cars and stolen items from them. She trespassed by approaching a car that was parked on the front lawn of a house. She did not steal from this car. This may well be because she was confronted by a resident at the house. Her own explanation was that she knew that the police were coming and was only attempting to hide behind the car. That explanation must be open to doubt, but it was not challenged. In any event, this was not an offence that could be viewed as one of particular seriousness, nor one that would usually be expected to attract a sentence of imprisonment.
41 It is relevant to take into account the circumstances in which the trespass offence was committed. Clearly the magistrate took a holistic view of the offending. This is reflected in the fact that he imposed no penalty in respect of the numerous stealing offences. These were offences for which the maximum penalty was a fine only. Fines for similar past offences had been ineffective.
42 It appears that what the magistrate was endeavouring to do was impose a sentence in respect of the trespass offence which would reflect the seriousness of the whole course of the conduct. However, it was important to impose a sentence for the trespass that reflected the seriousness of that offence. That offence could not be used as a vehicle
(Page 13)
- for imposing punishment for other offences that were not punishable by imprisonment.
43 In imposing a penalty for the trespass offence it was also necessary to take into account the personal circumstances of the appellant. Whilst there was really nothing that could be said in mitigation as regards the commission of the offences, there were two important factors which needed to be taken into account. They were that the appellant had pleaded guilty and that she had already served approximately 3 months in custody.
44 It would appear that the appellant had on each occasion been quickly apprehended by the police and had admitted her behaviour. Apart from the two items of clothing stolen in Katanning, all of the other property had been recovered.
45 As regards the time spent in custody, whilst it was not completely clear, it was not disputed that this time related to the offences for which the appellant was to be sentenced. In those circumstances it was open for the magistrate to take that time into account either by reducing the sentence that would otherwise be imposed or by backdating it: s 87 Sentencing Act 1995 (WA). The magistrate said that he had taken it into account and that the total effective sentence would otherwise have been higher. With respect to the trespass offence it is difficult to see how this could be so.
46 If the magistrate considered the starting point for the trespass was the maximum penalty, that is 12 months' imprisonment, he would be obliged to make appropriate reductions from that sentence to reflect the plea of guilty and the time spent in custody. A sentence of 8 months' imprisonment does not allow for such reductions. In any event the trespass was not an offence of such seriousness as could possibly justify starting at the maximum.
47 The magistrate was presented with a difficult sentencing problem. The appellant was a persistent offender and fines imposed for past offences had been ineffective. She had also failed to comply with the community based order. Understandably, his Honour was seeking an option that would have some meaningful prospect of deterring the appellant from further offending and protecting the community. However, a sentence of 8 months' imprisonment for the trespass offence was manifestly excessive. Whilst I would accept that a sentence of imprisonment was appropriate the sentence imposed for this offence was simply too high. The sentence needed to take into account the seriousness of the circumstances, the appellant's plea of guilty and the time spent in
(Page 14)
- custody. Those factors required a significantly lower sentence than was imposed.
48 For the above reasons I granted leave in respect of this ground of appeal.
Ground 2 - Should the sentence of imprisonment have been suspended?
49 A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles set out the in Sentencing Act 1995 (WA), that it is not appropriate to suspend the term: s 39(2) and s 39(3), Ness v The State of Western Australia [No 2] [2013] WASCA 56 [26] - [27] (Buss JA).
50 In this case the magistrate did not expressly mention the possibility of suspending the appellant's sentence. The appellant's counsel had invited the magistrate to consider a suspended sentence. However, a failure to refer to a sentencing option is not necessarily an indication that a magistrate has overlooked it: Powell v The State of Western Australia [2010] WASC 54 and Pickett v The State of Western Australia [2004] WASCA 291 [10] (McLure J).
51 In order to succeed on this ground of appeal the appellant must show that it was not open for the magistrate to impose the sentence that he did in the proper exercise of his sentencing discretion. Given that sentencing is an exercise that requires the weighing of discretionary factors it is difficult to come to a conclusion that the only appropriate view of the circumstances was that a suspended sentence should be imposed. Given that ground 1 of the appeal has been successful it is strictly unnecessary to determine ground 2. However, were it necessary to do so I would refuse leave in respect of ground 2.
Conclusion
52 For the reasons I have given the following orders were made on the hearing of the appeal:
1. Extension of time to appeal granted.
2. Leave to appeal in respect of ground 1 granted.
3. Appeal allowed.
4. The sentence of 8 months' imprisonment on charge BU 5529/12 (trespass) be set aside.
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- 5. In lieu thereof the appellant be resentenced to a term of 3 months' imprisonment.
53 This reduces the total effective sentence to one of 7 months' imprisonment, which I ordered be backdated to 25 October 2012 to take into account the time spent in custody. It should be noted that by the time the appeal was heard the appellant had served the whole of this sentence. That was a factor that I took into account in re-sentencing her.
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